SUDEB KUMAR MOOKHERJEE Vs. STATE OF BIHAR

JUDGEMENT

(1.) Heard learned counsel for the appellant and learned counsel for the State. The appellant superannuated from service as Assistant Engineer in the Department of Public Health and Engineering, Government of Bihar on 30.11.1997. He had earlier moved this court through a writ petition bearing CWJC No. 16162/2004 claiming salary for officiating on the post of Assistant Engineer even after 4.8.1981 when he was reverted to the post of Junior Engineer on account of his lower position in the seniority list. That writ petition was disposed of on 9.7.2007 with a direction to the authorities to consider the claim of the petitioner/appellant within a fixed period.

(2.) The Principal Secretary of the Department by a reasoned order contained in Annexure-1 to the writ petition which was challenged by the appellant, allowed officiating allowance under Rule 103 of the Bihar Service Code for the period between 19.4.1979 to 4.8.1981 when the appellant had been granted ad hoc promotion and had worked as Assistant Engineer (Mechanical). However, the claim for the period after 4.8.1981 till superannuation on 30.11.1997 was not accepted on the plea that during this period he was not working on the post of Assistant Engineer (Mechanical). This factual ground has been seriously challenged by the appellant on the basis of various orders annexed with the writ petition as Anhexure-5 series.

(3.) In the counter affidavit filed in this appeal the stand of the respondent authorities is that the appellant merely officiated as Assistant Engineer till his retirement but he was holding the post of Junior Engineer. This position is apparent from paragraph 16 of the counter affidavit. Since there is no dispute that the appellant was holding the post of Junior Engineer but was assigned the work of officiating on the higher post of Assistant Engineer between 5.8.1981 till his retirement on 30.11.1997, we are of the considered view that he would be entitled for officiating allowance as determined by the State Government under the provisions of Rule 103 of Bihar Service Code. There cannot be any substantive distinction for allowing officiating pay between 19.4.1979 till 4.8.1981 when the appellant had been granted ad hoc promotion to the higher post of Assistant Engineer which was of course found to be against law on account of his lower position in the seniority list and for the period after 4.8.1981. The only distinction is that earlier an erroneous ad hoc promotion was granted to the appellant under which he worked as Assistant Engineer and during the later period he officiated as Assistant Engineer without there being any such promotion.